September 21, 2015

How Richard Berman ’64 Decided DeflateGate

Judge Richard Berman ’64 was completely absorbed by the case. Nothing outside of his chambers, let alone the news media, could cross his mind. In mid-August, Berman was working on a case determining whether or not the manner in which the Securities and Exchange Commission appointed in-house judges, a case that had wide-reaching implications in a case against a former Standard & Poor’s executive, was constitutional.

As Berman worked on his decision in the case, one of his clerks came over to him.

“Judge, we’ve got the Brady case,” the clerk said.

“I had no idea what he was talking about,” Berman told The Sun. “I was really busy.”

The case, of course, was over the four-game suspension National Football League commissioner Roger Goodell gave to New England Patriots quarterback Tom Brady as a result of an alleged ball-deflating scandal prior to the 2015 AFC Championship Game.

But even before he even realized the implications of what his clerk had just told him, the phones in his chambers started ringing and ringing and ringing as members of the media tried to get ahold of the judge, who has presided over New York City courts since 1995.

It was not just football’s involvement that brought the spotlight on Deflategate. It was the overwhelming criticism of Goodell following the mishandling of the Ray Rice situation last year. It was the New England Patriots, the most hated organization in professional sports. It was Tom Brady, the league’s picture-perfect cover boy for whom nothing had ever gone wrong, on and off the field. It soon became clear to Berman that the case was “unlike anything else I had ever done.” The media coverage. The star power. The egos. DeflateGate was more than just an outlier for Berman. In its magnitude, it was a monster from another planet.

“Everyone is watching,” Berman said. “You need to bring your A-game.”

Berman set things in motion quickly, setting a conference for both sides as soon as possible to lay out a schedule for the proceedings. Both the NFL and Brady’s representation agreed to have everything wrapped up before Sept. 4, a little less than week before the Patriots opened their season in Foxboro against the Pittsburgh Steelers.

And suddenly, Berman found himself in a storm of media coverage.

Coverage of the upcoming legal proceedings in his court were plastered across newspapers and televisions. It was everywhere.

“It captured the public’s imagination,” Berman said. “I guess everybody is interested in football.” He laughs, seemingly after realizing how much he undersold the popularity of a league that owns a day of the week.

The ‘Socialization Experience’

When Berman got to Cornell University as a fresh-faced, “sheltered” 16 year old, he did not know how to handle himself. Every person, it seemed to Berman at the time, was incredibly successful. “A lot of them were more advanced than I socially in terms of partying and dating and drinking,” he said. “I don’t know if I had ever had a drink before coming to Cornell. It was a big eye opener.”

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Being on a campus of 20,000 students overwhelmed Berman. Even as a native of New York City, living on a college campus was an entirely different beast within itself. Having never attended summer camp growing up, Berman had never lived away from home. Before long, Berman’s sister, Judith, took him under her wing. He eventually got a job at her sorority, Sigma Delta Tau, and began waiting tables at the house. “Everyone in that sorority was older and more experienced. They really showed me the ropes up there.”

Judith, a popular senior on campus, helped Berman get through the first two semesters on campus in Ithaca, an experience he calls overwhelming. “If my sister was not there, I don’t know if I would’ve gone [to Cornell] at all,” Berman said. “I don’t know if I was mature enough to get through it.” Through increased involvement on campus, Berman slowly began to come out of his shell and began to form relationships with people through various activities and his fraternity, Tau Delta Phi.

“Cornell was an enormous socialization experience,” Berman said. “It really helped me for socially in a way that I can’t imagine would’ve happened otherwise.”

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The “socialization experience,” more than the time in the classroom, Berman said, played the biggest role in his eventual appointment to the United States District Court. “It was fundamental to my development and the success that I’ve had,” Berman said. “The socialization was far more important in the next step and the step after that in becoming a federal judge or any judge.”

An Unanticipated Career

Berman served as the executive vice president and general counsel for Time Warner Cable before becoming a judge in Queens County Family Court. But he never anticipated becoming a judge. It was really not something he thought about or expected to be doing during his legal career.

So in 1997, when the first high-profile case of his career fell onto his desk involving the police accusations of New York Mets outfielder Carl Everett and his wife abusing their children, Berman said he was not entirely prepared on how to handle the extra eyes on his courtroom.

“New York state family court had never seen that kind of high profile media attention. I had certainly never seen anything like it,” Berman said. “It turns out to have stood me in a very good place for future cases that I would get as a federal judge.”

As a federal judge, Berman ruled on several high-interest cases including a 2008 shooting involving Craigslist, a 2010 case where the son of movie star Michael Douglas pleaded guilty to dealing methamphetamine and a case from 2010–2012 where al-Qaida operative Aafia Siddiqui was charged with shooting American soldiers and FBI agents after her capture in Afghanistan.

“The high-profile cases are very different from any other cases you have,” Berman said. “Everyone is watching you. Everyone is reading about it each step of the way, which is vastly different from the typical case, which nobody ever really hears about unless they’re specifically interested. You have to get adjusted to being in the spotlight … If anybody tells you that they’re like any other case, that’s not true.”

Learning About the Law

Before his junior year of college, Berman, like many other college students, didn’t really know what he wanted to do. American Ideal, which was taught by professor Milton Konvitz, who previously worked under Thurgood Marshall and instructed future Supreme Court Justice Ruth Bader Ginsburg.

Professor Milton Konvitz (Cornell University)

Under Konvitz’ tutelage, he first learned about first amendment law and cases, something that eventually played a heavy role in his desire to pursue law. “That’s something I don’t think I would’ve contemplated before,” Berman said.

After graduating from law school at New York University, Berman practiced law as an associate for Davis Polk & Waldwell from 1970 to 1974 before becoming the executive assistant to Senator Jacob Javits of New York. “That was the greatest job I’ve ever had,” Berman said. Working under Javits, Berman began to develop significant experience dealing with the media.

When Berman moved on to work as executive vice president at Time Warner Cable, he continued to build experience working with the media, which lead him to lead the media relations committee when he was appointed as a federal judge by Bill Clinton in 1998. “I feel like I’m comfortable with, perhaps more comfortable, because of that experience that I might otherwise might be,” Berman said.

But nothing would measure up to what Berman would experience with DeflateGate.

‘Never Ruffled’

In three of his four Super Bowl victories, Tom Brady had to collect his composure, ignore the enormity of the stage and put together game-winning drives late in the fourth quarter. For Berman, DeflateGate was his Super Bowl.

With the amount of media scrutiny and public interest in the case, Berman could do nothing but put in full effort. “That means you’re more prepared than you otherwise might be and you try to be and appear to be more patient, more reflective, more fair,” Berman said. “You try to send the message that you are fair and open to both sides.”

From the get go, Berman tried to communicate that message to both the NFL and Brady. Chief judge Loretta A. Preska labeled Berman as “a famous settlement judge” to The Associated Press. “He’s very good at it. He understands people and the pressures on people and he’s always calm himself, never ruffled,” Preska told The AP.

Ultimately, the NFL and Brady were unable to reach an agreement on a settlement and Berman issued a decision that vacated Brady’s four-game suspension, which the NFL has since filed motions to appeal. “What they did not do was reach a meeting of the minds,” Berman said. “It became clear that they were not going to reach an agreement.”

The experience of going through the process, of going through an accelerated schedule and making a decision on DeflateGate was great, Berman said.

“I was enthusiastic about working on the case, both the settlement aspect and the writing of the opinion,” he said. “For me, it was a great experience.”

Berman said he was optimistic that both sides could come to an agreement, although he is unable to speak for the mindsets of the NFL and Brady’s respective representation coming into the appeals process. “It may have been clear in their minds [whether or not they thought they could agree on a settlement], but in mine, I’m optimistic,” Berman said. “We started the process, and I think both sides came to it in good faith and they went as far as they would go, each of them, but it turns out that was not close enough to get to an agreement.”

According to Preska, Berman gives lawyers a pen when they settle cases; the pen contains a quote from civil procedures that reads that rules should be “construed and administered to ensure the just, speedy and inexpensive determination of every action.” For DeflateGate, Berman said he tried to do just that.

“That is a process that I do in all cases, civil cases,” Berman said. “Most cases in our court, over 90 percent, do settle. A lot of the times, they settle with you or without you. Sometimes, you’re more helpful than in other situations.”

The Reaction to the Decision

After the news of Berman vacating Brady’s suspension was released, New England went into a frenzy. Some Patriots fans called for a statue of the judge to be built outside Gillette Stadium. Others brought signs to the Patriots games glorifying Berman’s actions. He saw the signs. All of them.

He saw all of the people in New England telling him to run for President. “My first cousin who feels that I outta pursue that,” Berman said. “I think he saw himself as part of the inner circle at the White House and told him he was getting a little ahead of himself. It’s not in the cards, but it’s very flattering.”

He saw the offer for free coffee for life from the Dunkin Donuts franchise in Lewiston, Maine. Mike and Diane Connor, who own the franchise, told Fox Sports that they are completely serious about the gesture. “If I’m up in Maine, we usually don’t take gifts, but a cup of coffee, I would certainly stop by there and have a donut and a cup of coffee,” Berman said. “[My wife] has volunteered to go up there because she [works] closer and may pick up a cup of coffee before I get there.”

He saw all of the letters from Patriots fans. One scientist sent Berman a letter, which he read after the trial, that recommended he conduct an experiment where he took four footballs, wrapped them in wet towels and put them in a refrigerator for a certain amount of time and measure the air pressure before and after. “Keep up your true American spirit,” one 92-year-old Patriots fan wrote to Berman. “You are the real MVP!!” another fan wrote. “It was a lot of fun [to see the reaction],” Berman said.

Like many other Americans, Berman likes to spend time on Sundays watching football. His NFL allegiances, however, remain tight to his chest. “I thought it would be best to not say,” Berman chuckles. “If you want to say [Cornell] Big Red, that’s fine.” He seems to know that whatever he said would fuel conspiracy theories, one way or another.

Throughout the trial, Berman’s wife, who teaches at Wellesley College three days a week, would come back home to the couple’s apartment in New York and tell Berman about the coverage of the case in the newspaper and sports radio. “It’s unbelievable,” she told him. People would come up to her around campus and talk to her about her husband’s handling of the case, mostly in jubilation after Berman handed down his decision.

“She said that in Boston, I could become a celebrity,” Berman chuckled. “Or maybe I already am.”

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“Our focus this year has been to finish games,” explained Cornell sprint football head coach Bart Guccia. The Red did just that in its 33-7 victory over Mansfield on Saturday, completing a 26-0 run over the last three quarters.